The King, the Mufti & the Facebook Girl: A Power Play. Who Decides What is Licit in Islam?

Khalid Chraibi

CyberOrient,
Vol. 5, Iss. 2, 2011

Abstract

Saudi Arabia enforces a ban on woman driving on the grounds that it is prohibited by sharia law. Women’s associations have actively denounced this ban for years, arguing that it was the only Muslim country which had such a peculiar interpretation of Islamic law. A power play is taking place online on this subject between the ulema (who support the ban), the Saudi authorities and feminine associations. This situation raises the question: “Who decides what is licit or illicit in Islam?” Muslim women’s associations merely ask for the implementation in Muslim countries of the “best practices” in Islamic law which exist anywhere, as a substitute for those laws which are unfavorable to women’s rights or do not protect their interests adequately.

"It is human beings
(with all their frailties) who interpret the sharia"Ali ibn Abi Talib

"Women in Saudi
Arabia: to drive or not drive? That is not the question.The question is:
When?"Somayya Jabarti (2011)

Introduction

Although
sharia was developed in the Muslim world based on the same sources (Quranic
prescriptions, "hadiths" [sayings] of the Messenger Muhammad, etc.), its rulings
on any point may vary significantly from one country to another, as well as
over time. Thus, the rights of women in Muslim countries, which are claimed to
be ruled by sharia, differ on important points from one country to another and
one legal tradition to another. In Saudi
Arabia, women are not allowed to drive a car, based on a fatwa by the country's
former grand mufti Abdel Aziz Bin Baz. But, no such ban exists anywhere else in
the Muslim world. Saudi women's associations have been contesting the fatwa's
reasoning and conclusions for years, but all in vain. They seize every
opportunity to bring the issue back into focus, resorting, among other things, to
the web's social networks (Facebook, YouTube, Twitter, etc.) to communicate
their message, to mobilize support for their position, and to put pressure on the
authorities to get them to act on this question.

Thus,
in May 2011, the young feminist activist Manal al-Sharif put on Facebook and
YouTube a "provocative" video of herself driving a car and talking with another
passenger about the women's plight in Saudi Arabia resulting from the driving
ban (al-Sharif 2011). This gesture of defiance upset the Saudi authorities
which had her arrested and detained for nine days on the charge of "disturbing
public order and inciting public opinion," before releasing her (Sidiya and Hawari
2011). When another woman drove a car, in defiance of the same ban, a judge
sentenced her in September 2011 to a flogging. It took the personal
intervention of King Abdullah to cancel the harsh sentence (Sheridan 2011).

The
driving ban issue raises important questions concerning the interpretation and
implementation of Islamic law in Muslim countries. How can sharia lend itself
to such a wide variety of interpretations that things which are licit and banal
in a Muslim State are, at the same moment, considered as illicit and sanctioned
harshly in another Muslim country? Who decides what is licit or illicit in
Islam? Muslim women's associations have learned through experience that it serves
little purpose to question each state's interpretation of sharia on every
controversial point. Some have evolved a new strategy to deal with the issue.
They call for the adoption and implementation in Muslim countries of the "best
practices" in Islamic law which exist anywhere, in substitution to those laws
which are unfavorable to women's rights or do not protect their interests
adequately.

The Grand Mufti Bin Baz fatwa on women driving

Shaikh
Abdel Aziz Bin Baz's fatwa is at the heart of the Saudi controversy. According to
him, "[driving of automobiles by women] is a source of undeniable vices",
including "the legally prohibited khalwa
[meeting in private between a man and a woman] and abandonment of hijab [women's veil]. This also entails
women meeting with men without taking the necessary precautions. It could also
lead to committing haram [taboo] acts
hence this was forbidden." He further explains
that (Bin Baz 1990)[1]:
"Pure sharia also prohibits the means that lead to committing taboo acts and
considers these acts haram in
themselves...Thus, the pure sharia prohibited all the ways leading to
vice...Women's driving is one of the means leading to that and this is
self-evident."

The "khalwa" issue is clearly at the center of the Mufti's preoccupations. Although the Quran does not address itself to this topic, a hadith of the Messenger states:

"Whosoever believes in Allah and the Last Day, let him not be alone with a woman who has not a mahram (male relative who she cannot marry) with her. Indeed, the third (person) is al-Shaytan [Satan]!"

This hadith has been
interpreted variously in different parts of the Muslim world. In the countries
of the Maghreb, it is viewed as a warning to avoid situations in which sexual
temptation may arise. But, in the Gulf States, the ulema ruled that this hadith
prohibited khalwa. Even though the
Messenger did not define any sanctions, the ulema studied the "offence",
defined its nature and decided on the applicable sanctions (under the ta'azir approach, in which the judge has
latitude to decide on the applicable sanction, such as whip lashes, or a jail
sentence) (Chraibi 2008).

According
to Bin Baz, if a woman is allowed to drive a car, she will leave her home
(where she is safe) to go to places where she will be subjected to a variety of
temptations. She may thus find herself in a situation of khalwa, take off her appropriate Islamic dress or doing things
which are prohibited by sharia. Bin Baz quotes at length Quranic verses and
hadiths of the Messenger to the effect that women are a major cause of
temptation for men, and that they should not mingle with those men who do not
belong to their immediate family. Therefore, in order to avoid this, he thinks
that women should not be allowed to drive. He finds legal support for this
conclusion in the sharia principle which states that it is illicit to use means
which help accomplish an illicit end.

A critique of the fatwa

Women's
associations in Saudi Arabia do not openly criticize the fatwa, preferring to
observe that there is no such interpretation of sharia in the rest of the
Muslim world. But, the fatwa hardly withstands scrutiny:

The premise of the fatwa is questionable

The
Mufti states that [Saudi] women cannot be trusted to go out of their home
without the risk of committing illicit acts. He takes no account of Saudi
women's education and self-respect, their sense of honor, their sense of
values, their loyalty to their husband (when they are married). Although there
exist many Quranic verses and hadiths of the Messenger celebrating the virtues
of women, Bin Baz quotes only these verses and hadiths which throw a shadow of
doubt on their behavior.

The
premise of Bin Baz is unsupported by any corroborating evidence from the real
world, judging by women's behavior in the rest of the world (including in
Muslim countries).Moreover, Bin Baz worries only about the sexual implications
of the encounters that woman driving may lead to. He fails to take into account
the tremendous difficulties that the driving ban creates every day for women
who have to go to work, to take their children to school, etc. Buses and cabs
are insufficient in number to meet the demand at peak hours, when they are most
needed. The expenses associated with the daily use of cabs are also very high,
compared to the cost of using one's own car. Only wealthy women can afford to
hire a full-time chauffeur, invariable a male not from her family. The rest of
the female population is left to fend for itself, because of the fatwa.

The juridical principle invoked in the fatwa is applied
selectively

Bin
Baz notes that "sharia prohibits the means that lead to committing taboo acts
and considers these acts haram in
themselves." This is true, but the principle is applied very selectively. For
example, smoking is harmful to one's health, and ulema throughout the Muslim
world have been asking for decades for a tobacco ban in Muslim countries, based
on this principle(Islam for today 2003). But, no Muslim State has ever
entertained the idea of enacting a tobacco ban, except in certain public
spaces. People are usually free to smoke in Saudi Arabia, nowadays, as they do
in the entire Muslim world. So, why is not this principle applied to deal with
the smoking issue? Why are men not sanctioned for smoking, if this principle is
so important a general application?

The juridical principle should also apply to men

If woman
driving can be banned, based on sharia, to avoid its leading to a situation of khalwa, with its possibly unlawful
consequences, the same driving ban should also apply to men, in order for them
to avoid finding themselves in haram situations
prohibited by sharia. The juridical principle underlying the driving ban should
be applied indiscriminately to all people, regardless of sex.

A unique interpretation of sharia in the Muslim world

This
fatwa relies on an interpretation of sharia which is unique in the Muslim
world. In dozens of other Muslim States and communities, the fact of woman
driving is considered as a banal act, perfectly licit from the point of view of
sharia. Are all these other Muslim scholars in error on this point? The Bin Baz
fatwa draws its strength in Saudi Arabia from the fact that it is in line with
the Saudi society's prevailing conservative culture, customs and traditions.
The religious establishment, the leading groups in power in the country and
most Saudi men support the Grand Mufti's fatwa because they fully agree
culturally with its conclusions, regardless of whether the latter are
well-grounded in Muslim law or not.

As
for Saudi women, they have been born and raised in a social and cultural
environment in which females have the status of "perpetual minors" (Human
Rights Watch 2008) which cannot do a thing without the authorization of a male
"tutor" (be it a father, a husband, a brother or even a son)[2].
In theory they cannot go out of their home without being accompanied by a mahram (male guardian) to avoid falling
into a situation of being alone with a male non-family member. In their
majority, Saudi women accept the situation as a matter of fact and submit to
the constraints it imposes, regardless of whether they consider the ban as
God-given or as merely imposed by men's will.

However,
a growing number of women pursue their education to the university level,
travel abroad on vacation, watch satellite TV networks and use modern
technologies such as the internet and mobile phones. They are thus regularly
made aware of the enormous gap which exists between the set of constraints and
restrictions within Saudi Arabia, and
the freedom of movement and of action that Muslim women enjoy in other Muslim
countries. As a result, though still a minority, many people in the country
(both male and female) are working essentially within the framework of human
rights NGOs and women's rights associations.
They increasingly dare to question the situation and to openly express
their disagreement with the contents of Bin Baz's fatwa.

The fatwa and the national law

However,
the important point to keep in mind, in this debate, is that a fatwa is not
binding in Islamic law. This is a point that Sheikh Abdul Mohsen al-Obeikan(2006),
vice-minister of Justice of Saudi Arabia, makes perfectly clear in an interview
granted to the Arabic daily Asharq al-awsat
on July 9, 2006. Asked whether a fatwa by the Islamic Fiqh Academy (IFA) on the
subject of misyar (temporary)
marriage, which had been rendered by IFA on April 12, 2006, was binding on
member States, al-Obeikan replied: "Of course, [the fatwas issued by the
Islamic Fiqh Academy] are not binding for the member Islamic states." He then
explained: "There is a difference between a judge and a mufti. The judge issues a verdict and binds people to it. However,
the mufti explains the legal judgment but he does not bind the people to his
fatwa. The decisions of the Islamic Fiqh Academy are fatwa decisions that are
not binding for others. They only explain the legal judgment, as the case is in
fiqh books.[3]"
Asked to explain whether the fatwas issued by the Ifta House [official Saudi
fatwā organism] are binding on others, he said: "I do not agree with this. Even
the decisions of the Ifta House are not considered binding, whether for the
people or the State."

Consequently,
no matter how one views Bin Baz' arguments and conclusions, the fact is that
his fatwa merely expresses his juridical point of view on the subject. It is
not binding on anyone else, neither on individuals nor on the State. It would
be necessary for the Saudi State to adopt a law (based on the fatwa) in order
to give the fatwa the force of law. According to the Saudi authorities, there
is no law prohibiting woman driving in the country(Reuters 2007). However,
Saudi nationals as well as foreign visitors need to obtain a Saudi-issued
license to drive in the country. The authorities refuse to issue such licenses
to women (not even to foreign ones), making it effectively illegal for them to
drive(al-Mokhtar and Wahab 2011). They do so based on an order issued by the
Minister of Interior in 1411 H (1991-92) which considers driving a car by a
woman an offence, even though there is no official law to this effect[4].
Saudi women (as well as foreign ones) are thus subjected by the Saudi
authorities to a discriminatory practice, based on gender.

A Saudi power play

So,
today, a discrete power play can be said to be taking place within the country
on the subject of women's status and rights, between the three major players in
the field with the driving issue as a catalyzer. The ulema, relying on
centuries of traditions, support the Bin Baz fatwa and its conclusions that
sharia prohibits a woman driving automobiles to avoid falling into a situation
of khalwa and its possible illicit consequences.
To make things perfectly clear, in September 2011, a Judge sentenced to 10 whip
lashes a woman who had been arrested by the police for driving a car. This
harsh sentence caused a big uproar, both in the country and abroad, and it took
the personal intervention of King Abdullah to cancel it.

The
feminist groups consider that the ulema defend an extremely conservative
interpretation of sharia, which is unique in the Muslim world. They want the
ulema and the State administration to admit that other interpretations are possible
within the religious framework of the country. They know they have a very
strong hand on this point, when they say: "If the driving of automobiles by
women is perfectly legal, natural, and banal in all Muslim countries and
communities in the world, with the exception of Saudi Arabia, why should Saudi
women be penalized, and banned from driving, simply because the Saudi
authorities have chosen to apply to them their restrictive interpretation of
Islamic law? Why not adopt a more liberal and widespread interpretation of
Islamic law on this subject, such as exists in other Muslim countries which also
apply sharia, and consider that a woman driving is not in itself an ethical
danger?"

Saudi
feminist activists do their best to maintain the issue into public focus. To
this end, they regularly make use of the internet and its social networks
(Facebook, YouTube, Twitter). In the
early months of 2011, they demonstrated their tremendous capabilities and
efficacy through these new means of communication and mobilization in Arab
countries, Social media were among the principal tools of information of the
national and international media and of mobilization of the people in the
uprisings which took place in Tunisia, Libya, Egypt, Yemen, Bahrain and Syria.

Not
surprisingly, the young feminist protester Manal al-Sharif used the web's
social networks as a means of protest against the driving ban, in defiance of
this ban she put a video of herself driving a car on Facebook and YouTube in
May 2011, Her subsequent arrest by the Saudi police on the charge of
"disturbing public order and inciting public opinion" made the news worldwide,
drawing much more attention to her protest than she could ever have imagined.
The incident put the Saudi authorities under new pressure to take a fresh look
at the driving issue.

The
feminine associations again made use of the social networks to call for a
"drive-in" on June 17, 2011 in order to protest Manal al-Sharif's arrest and to
renew the pressure on the authorities. Numerous women participated in the
protest, which also made the news worldwide. Manal al-Sharif had written
provocatively on the web: "I will drive my car myself." A slogan of this
campaign emphatically stated, along the same defiant line: "I want to drive
because there's no reason why I can't." Similarly, a group of Saudi women
posted on different Saudi websites, and circulated through e-mails, a petition
addressed to the government, asking that women be allowed to drive cars. "We
demand that the right of women to drive is given back to us," says the
petition. "It's a right that was enjoyed by our mothers and grandmothers in
complete freedom to (utilize) the means of transportation in those times." (Mubarak
2007)

The
political authorities for their part are aware, at the country's highest level, of the need for
change in the domain of women's rights in general, and of the driving issue in
particular. They tell their critics that all they do is implement sharia, which
has defined a different set of rules for males and females. Consequently, by
applying to each of the two sexes the appropriate sharia rules, they do not
violate anyone's rights, whether male or female. Sharia merely presents a
conception of human rights which differs from that of Western countries. But, during a state visit to the United
Kingdom in 2007, the king told the British media that the driving issue belonged
not in politics, but within the social field, reflecting local customs and
traditions (and, thus, one could say, not Quranic prescriptions). His
administration is divided on this issue. So, even though the king wants to
promote some reforms, he seems to have limited degrees of freedom, as he is
confronted with a great deal of resistance from the religious establishment and
the traditional segments of society, both within the population and the civil
administration.

In
September 2011, the king took a highly symbolic and even "revolutionary" decision,
given the Saudi context, announcing that women would be able to vote in
elections and to serve on the Shura Council as full members in future. This was
a considerable step forward in Saudi women's struggle for freedom, equality and
justice. But, can he convince the ulema establishment to turn the page on the
Bin Baz fatwa and to endorse the "best practice" in the Muslim world, according
to which the driving of automobiles by women is compatible with sharia?

Women reading the sharia

The
driving ban issue illustrates the enormous differences which exist in the
interpretation of sharia in the Muslim world. Some Muslim women's associations
took it upon themselves, therefore, to proceed with a thorough study of the sharia,
in order to determine for themselves what it really said on the subject of
women's rights(WLUML 2004). They thus became aware, in the words of Pakistan's
Riffat Hassan(2011), that "there was a big gap in what the Koran was saying
about women's rights and what was actually happening in Muslim culture. So, one
has to distinguish between Koranic text and the Islamic tradition. The
interpretation of the Koran from the earliest times till now has been done
almost entirely by men. It was also done in a male-dominated patriarchal
culture. So the Koran was interpreted through a male-centric cultural
lens-which obviously has affected women's rights."

Nigeria's
Ayesha Imam(2005) notes, for her part, the need "to distinguish between Islam -
the way of Allah - on the one hand, and, what Muslims do - those who believe in
Islam and attempt to practice it - on the other." She explains: "Islam is not
questioned. But, what Muslims (human fallible people) make of Islam can be."
She says emphatically: "Though religious laws draw their inspiration from the
divine, they are not the same as divine laws." They "do rely on human agency to
elaborate, implement and enforce them." In many situations, even the experts do
not agree on the definitive meaning of verses in the Quran. Similarly, "many hadith
(accounts of the life of the Prophet) are apocryphal, motivated by inter-sect
and dynastic rivalries." Thus, some hadiths seem to have had as their principal
aim to put restrictions on women's rights, although they are not compatible
with the teachings of some suras in the Quran or with other hadiths. Ms. Imam
notes the existence of four main schools of sharia in the Sunni tradition,
illustrating the diversity of interpretations. None of the leaders of these
schools considered their views as final or binding on all Muslims. So,
"refusing further ijtihad (personal
reflection) is not a religious or divinely sanctioned act. It is not required
in the Koran or by the Sunna. To the contrary, both the Koran and hadith refer
approvingly to thinking, reasoning and diversity of opinion."

Therefore,
observes Malaysia's Zainah Anwar(2004): "If Islam is to be used as a source of
law and public policy to govern the public and private lives of citizens, then
the question of who decides what is Islamic and what is not, is of paramount
importance. What are the implications for democratic governance when only a
small, exclusive group of people is accorded the right to interpret the Text
and codify it? Particularly when they do so very often in a manner that
isolates the Text from the socio-historical context in which it was revealed,
isolates classical juristic opinion from the socio-historical context of the
lives of the founding jurists of Islam, and isolates the Text from the context
of contemporary society."

Nora
Murat(2004) adds: "Knowledge that the Koran supports the universal values of
equality, justice and a life of dignity for women, gives us the courage and
conviction to stand up and argue with those who support discrimination against
women in the name of religion. It is this knowledge that gives us the
confidence to tell them that there are alternative views on the subject and
that their obscurantist view, which discriminates against women, is not the
only view in Islam."

Who decides what is licit in Islam?

These
women were aware that, in the absence of a religious hierarchy in Sunni Islam, there
was no supreme theological authority they could turn to, to ask it to arbitrate
between divergent rules which were applied in different areas of the Muslim
world. Moreover, observes Ahmed Khamlichi(2002), Director of Dar al Hadith al
Hassaniya (Morocco): "The ulema do not have a monopoly on the interpretation of
sharia. Of course, they must be consulted before anyone else on sharia issues.
(But), they do not make the religious law, in the same way that it isn't the
law professors who make the law, but the Parliaments."

Today,
sharia is, in fact, interpreted and applied in the context of each state as a result
of its own choices. It is the political, religious and lawmaking authorities in
each Muslim country, acting in a concerted way, either by consensus or by
negotiation, which hold the power to decide what will be considered as lawful
in the country, theoretically by drawing on the database of all the options
that the sharia can offer on a given issue.The development of personal status
codes (Islamic family law codes) provides a good illustration of the approach
used. The rulers choose, in a range of solutions which are all considered as lawful
in Islam, the one that best meets their objectives. The selected option is
discussed with all concerned, and in particular with the religious authorities
(such as the mufti or the Ulema
Council). Then, it is drafted as a text of law which is presented to the
Parliament for discussion and approval. Once the text is adopted by the
Parliament, and then endorsed by all concerned administrative instances, it is
published in the country's official legal media to become effectively the law
of the land on that subject.

But,
what is considered as lawful in a Muslim state, at a given moment, on a given
question, may be considered as illicit in another Muslim state, at the same
time. Such a situation is not unusual, and reflects the interplay of several
factors. First, Muslim countries belong
to several schools of legal thought, or juridical rites (Abu Hanifa, Malik ibn
Anas, al-Shafi'i, Ibn Hanbal, Shi'a...), each of which has developed its own
methodology to study the same questions, resulting in a number of variations in
the answers provided. Second, the ulema can interpret differently the same
religious texts of reference (a Quranic verse or a hadith, for example) when
their formulation lends itself to multiple interpretations, or they can draw
different conclusions from them, depending on the context in which they place
them, and the other suras, hadiths, etc. they bring to bear on them to
substantiate their interpretation. Third, in most Muslim-majority countries,
some confusion prevails at times on certain issues, even at the ulema's level,
between what belongs to national customs and traditions on the one hand, and
what belongs to Quranic prescriptions, on the other.

How
is one to determine, therefore, what Islamic law really says on each important
issue (concerning women's rights for example) when one is confronted with a
multiplicity of interpretations which are promoted by the different juridical
schools? Is it possible to promote progress in the field of human rights within
the religious framework?

The strategy of the "best practices" in Muslim law

In
their efforts to promote the respect of women's rights in the Muslim world, the
national and international associations acting in this field gave, for a while,
a high priority to putting pressure on governments to implement the
UN-sponsored international conventions these countries had signed, concerning
human rights in general and women's rights in particular. They also wanted
their governments to withdraw the reservations they had expressed on signing
these conventions concerning various provisions - on the grounds that they
"conflict with religion" - since the reservations had the effect of diluting
much of the conventions' usefulness. But, they rapidly became aware of the ineffectiveness
of this strategy, which led to no tangible results, and was criticized by
conservative movements in the Muslim world on the grounds that these associations
wanted to replace sharia with Western law.

These
associations also quickly saw the uselessness of contesting any state's interpretation
of any point in sharia, because they would always be confronted with excellent
jurists which would find unassailable arguments to justify the state's rulings
on any point, whatever it was, within any particular rite. But, having
developed a great expertise in the analysis, interpretation and implementation
of all major aspects of sharia throughout the Muslim world, women's
associations became aware of the opportunities offered by the diversity of interpretations
of Muslim law which prevailed in different countries(WLUML 2006).

"Sisters
in Islam" (SIS 2011a) from Malaysia and "Collectif 95-Maghreb-Egalité" (Collectif
95-Maghreb-Egalité 1995, 2003) (which comprises the main women associations of
Morocco, Algeria and Tunisia), working within a network of feminine
associations, came up with a new strategy to achieve progress in the field of
Muslim women's rights. Their position is as follows: "If all these different rules
are equally valid in the sharia, and if some of them grant more rights to women
or protect their interests better, isn't it these rules (designated as the
"best practices" in Islamic family law) which should be applied in Muslim
countries, in the beginning of the 21st century, in preference to the rules
which are less favorable to women's rights? Why should women pay the price for
these differences in interpretation, which clearly are the acts of men?"(Chraibi
2009, SIS 2011b)

In
support of this last point, NGOs observe that, although the Personal Status
Codes of Muslim countries are based on Quranic prescriptions and Sunna
teachings, everybody takes it for granted that they should be revised from time
to time to take into account the evolution of society. This was the case of the
codes of Egypt (2000), Mauritania (2001), Morocco (2004) and Algeria (2005). Since
the rules presented in such family law codes are periodically modified, is this
not conclusive evidence that many rulings contained in these codes of law do
not represent immutable Quranic prescriptions but merely man-made choices,
which can - and should be - modified as required by circumstances?

A case study of the application of the "best practices" strategy: the reform of Morocco's Personal Status Code in 2004

The reform of Morocco's moudawana (Personal Status Code) provides a good illustration of
how the "best practices" strategy was applied in a Muslim country, resulting in
considerable progress in the field of women's rights within the religious framework.
The first version of the Code was adopted in 1957, shortly after independence.
Though relatively modern and equitable in many respects, it showed a clear
conservative bias in its interpretation of many provisions of the sharia,
putting several undue restrictions on women's rights. The network of Moroccan
women's rights associations struggled for a half-century before the code was
revised in depth. This reform finally took place in 2004(Kingdom of Morocco 2004).

The
new "Family law" of 2004 completely redefined the legal status of women within
the family and society, bringing it considerably closer to current
international standards. Among other things, it made the family the joint
responsibility of both spouses, rescinding the wife's duty of obedience to her
husband. It allowed women to be their own guardians, and raised the minimum age
of marriage for women to eighteen years. It put prohibitive restrictions on
polygamy, by requiring the consent of the first wife, the notification of the
second wife of the existence of the first one, and a judge's consent to the
second marriage - which may be granted if he is satisfied that the husband will
grant equal status to each wife in every respect. The Law made polygamy grounds
for divorce by the first wife, and promoted the use of a marriage contract to
exclude the possibility of a second marriage by the husband. It put repudiation
under strict judicial control, and required an equitable distribution of the
couple's assets before a divorce could be final.

The
Moroccan ulema and jurists associated with the revision of this code explained
that all its provisions were based on a meticulous reading of the sharia, in
all its complexity, taking into account the "best practices" in use in other
Muslim countries. Thanks to a more modern interpretation of the sharia'
prescriptions, it afforded a considerable progress in the situation of women in
Morocco. Following this recasting of the Personal Status Code in 2004, the
Moroccan authorities progressively withdrew, one after the other, the
reservations they had previously expressed about the implementation in Morocco
of some provisions of various international Conventions dealing with women's
rights, which they had earlier considered as possibly "inconsistent with religious
prescriptions."

Conclusion

The
driving ban on women and the khalwa
issues in Saudi Arabia result from a unique and extremely conservative
interpretation of Islamic law, which declares as illicit actions which are considered
as banal and licit in other Muslim countries. The power play taking place today
on this subject between the ulema, the authorities and feminine associations
will determine whether women will be allowed to eventually drive or not. In the process feminine associations have
learned through experience the vanity of questioning the interpretation of
Islamic law which prevails in any Muslim country, because each country's ulema are
convinced that they interpret and apply sharia correctly within the framework
of their own juridical rite.

The
associations working in the domain of women's rights have therefore developed a
strategy which circumvents these considerations, to address itself to the heart
of the problem. Since all the different rules applied to determine women's
rights in different Muslim states applying sharia are equally valid, they
suggest that the Muslim states apply to women the "best practices" in existence
in the Muslim world, specifically those sharia rules which grant them more
rights or protect their interests better, in substitution to the rules which
are less favorable to women's rights.

They
argue: "Why should women pay the price for these differences in interpretation,
which clearly are the acts of men?" This strategy is, unquestionably, in tune with
both the letter and the spirit of sharia. If adopted by all Muslim states, it
could drastically change for the better the life of dozens of millions of
Muslim women throughout the Muslim world. It could thus pave the way for a
brighter future for all women living under Muslim law. Using this approach, in
Saudi Arabia the authorities could legitimately allow women to drive, within
the religious framework, if they decide to base their new ruling on the "best
practices" in existence in other representative Muslim countries which apply sharia.

Acknowledgments

I
would like to thank Ms Rachida Benchemsi for her valuable comments on the early
draft of this paper.

[2] "[A
woman] is not allowed to drive cars, to travel without consent, to stay in a
hotel without consent, to name her children without consent, to get any
document needed for her children without consent, to apply for schools for her
children without consent, to get a passport without consent, to get out of the
house without consent, to leave the work place (this concerns school teachers)
without consent, to apply for a job without consent, to rent a house alone
without consent, to change the colour of her Islamic garment (Abaya), to go to
university or school without consent, to make use of the scholarships abroad
without consent, to underwriting or open an account for her children without
consent, to uncover her face in some cities in the kingdom, to send for a
driver or a domestic helper without consent..." (Saudi Women for Reform 2007)

[3] The
same position is developed by Mehmood Madani, president of the
Jamaat-e-Ulema-e-Hind, who explains: "In Sunni Islam, a fatwā is nothing
more than an opinion. It is just a view of a mufti and is not binding in
India." (Naqvi 2005)

[4] According
to Prince Ahmad Bin Abdul Aziz Aal Saud, Deputy Minister of Interior Affairs, a
"statement has already been issued in the year 1411 (1991/92)" on the woman
driving issue [prohibiting woman driving]. This 1411 statement is still in
force. "The Ministry of Interior is still implementing it," Prince Ahmad said.
"It is not up to us to say whether it is right or wrong, we only implement the
regulations." (Okaz/Saudi Gazette 2011)